Delhi HC Issues Directions on Removal of ‘Offensive’ Web Content

“An intermediary cannot say that it is unable to remove or disable access to offending content,” the court ruled.

The Delhi High Court on Tuesday, 20 April, ruled that photographs taken from social media sites like Facebook and Instagram, and uploaded on pornographic websites without the consent of the concerned person amounts to an offence under Section 67 of the IT Act. The act, regardless of the photograph being offensive/obscene in itself, amounts to a breach of a person's privacy, LiveLaw reported.

A single-judge bench comprising Justice Anup Jairam Bhambhani held that in such cases, the court may in appropriate cases pass an order of injunction or restrain.

The court also observed the role of intermediaries in such cases, and held that they are mandated to disable access to such content once they receive a court order or a notification by the appropriate government or its agency.

If the intermediary fails to do so, they are liable to lose the exemption from liability available to it under Section 79(1) of the Information Technology Act, LiveLaw reported.

The court said, "In the first instance therefore, an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite such actual knowledge as contemplated in law,” LiveLaw quoted.

On Intermediaries Under IT Rules, 2021

Further, the court observed that for an injunction or a restrain, which directs for disablement of offending content to be effective even within India, a search engine must block the search results internationally too, since no purpose would be served by issuing the order if it has no actual prospect of preventing harm to a litigant, LiveLaw reported.

Under the provisions contained in the IT Act, Information Technology (Intermediaries Guidelines) Rules 2011 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, an intermediary is now required by its rules and regulations, privacy policy or user agreement to "inter alia inform its users that they must not host, display, upload modify, publish, transmit, store, update or share any information that 'belongs to another person and to which the user does not have any right' or which is inter alia 'invasive of another's privacy’,” the court noted.

The petitioner had also informed the court that despite her "privacy settings" being activated on social media, photos and other details were taken non-consensually, and it was submitted by the petitioner that such a conduct is punishable under Section 67 of the IT Act and will fall within the meaning of mischief under Indian Penal Code (IPC) and IT Act.

The court ruled in passing, in relation to the more serious offences impacting the sovereignty and integrity of India, security of the state and other such matters, a significant social media intermediary is now also mandated to enable the identification of the ‘first originator of the information on its computer resources’.

Suggested Directions to Be Issued

• The court observed that under Rule 3(2), an elaborate time-bound grievance redressal mechanism is provided and a time frame of 24 hours from the receipt of a complaint is given to intermediary to 'take all reasonable and practicable measures to remove or disable access to such content that is hosted, stored, published or transmitted by it’, LiveLaw reported.
• In line with Rule 3(1)(g) of 2021 Act, the online platform on which the offending content is hosted is to preserve all information and records pertaining to the objectionable content, so evidence in relation to the offending content is not vitiated, at least for a period of 180 days or such longer period as the court may direct, for use in investigation.
• Search engine(s) are to make the offending content non-searchable by 'de-indexing' and 'dereferencing' the content in their listed search results, including de-indexing and de-referencing all concerned webpages, sub-pages or sub-directories on which the offending content is found.
• The directions issued must also mandate the concerned intermediaries, whether websites/online platforms/search engine(s), to endeavour to employ pro-active monitoring by using automated tools, to identify and remove or disable access to any content that is 'exactly identical' to the offending content that is subject matter of the court order, as contemplated in Rule 4(1)(d) of the 2021 rules.
• The law enforcement body should be directed to obtain all unique user information relating to the offending content, and the same must be not later than 72 hours.
• The court may also direct the litigant to lodge their complaint on the National Cyber-Crime Reporting Portal, for initiating the process provided for grievance redressal on that portal.

(With inputs from LiveLaw)